Google's battle over library books

Ten months ago, Google announced that it planned to scan, digitize and make searchable the collections of five of the largest libraries in the world. At first, it seemed like one of those nifty ideas that regularly percolate out of the young search giant.

But there's a big catch: Many of those books are protected by copyrights, and Google is requiring copyright holders to opt out of the scanning process if they don't want their books in libraries to be searchable.

That's raised plenty of hackles among publishers, who argue that they--not Google--should control who can see and search the books. And last week, five leading publishers filed suit against Google to stop the program.

"It's a commercial use" of the books and therefore a copyright violation, said Ralph Oman, a lawyer and former Register of Copyrights for the U.S. Copyright office. "This is masquerading as an educational use (which wouldn't be an obvious violation), but from Google's point of view this is a money-making exercise."

But not every copyright expert is so sure Google is on thin ice. Truth is, there's no consensus in the legal community on this one-of-a-kind case. The fight comes down to a simple question: Is the search king setting itself up to be a copyright violator of epic proportions, or is it a champion of learning trying to make even the most obscure books readily accessible in a Web search?

"It's an incredibly interesting test case. I don't see a clear winner, at the moment," said Bruce Sostek, an intellectual-property lawyer at the Dallas firm of Thompson & Knight. "The issue of supplanting the rights of authors and trying to substitute ones and zeros for real books, I think there is something that strikes people as unsettling about that."

The library scanning project is part of Google's Print Program, which was launched a year ago with the goal of making books all over the world as full-text searchable as possible through a virtual or electronic card catalog.

The Print Program has two components, one for publishers and one for libraries. Under the Google Publisher Program, the company is working with book publishers to make titles searchable and easy to purchase. The search result pages include advertisements if publishers want them, and most of the revenue goes to the publishers, Google said.

The controversial part of the Print Program, which has prompted two lawsuits so far, is the Print Library Project. Under the Library Project, the search giant is scanning, digitizing and making searchable parts or all of the collections from Stanford University, Harvard University, Oxford University, the University of Michigan and The New York Public Library.

Google says it will scan copyright protected books from libraries unless the publisher or copyright holder expressly opts out. If the book is copyright protected, there is minimal text, only a few sentences, or "snippets," surrounding the keywords searched. There are no ads on Google Library Project pages.

If the work is in the public domain, the entire page will be shown and
people will be able to read the whole book. However, they will not be able to print or download the book, Google says.

Opt out, or else
The company halted the library book scanning in August to allow copyright holders time to contact Google and opt out. Google plans to resume the scanning Nov. 1. But extra time or not, publishers are miffed.

"With 'opt out' they are shifting the burden to the copyright holder to come in and affirmatively do something, which somewhat undermines their rights to the copyright," said Sostek.

However, David Drummond, Google's general counsel, argued that Google's plans fall under the "fair use" provisions of U.S. copyright law, which do not require getting authorization from copyright holders in certain circumstances.

The lawsuits argue that making a full copy of a copyright protected book, even just for searching purposes, does not fit into the narrow exception to the law allowed under "fair use," usually reserved for research, news reporting and education.

"The problem, as I see it, is Google is making a complete copy of the work and they claim this is a fair use," said Oman.

Just like a search engine
Opponents may "argue that making a full copy of a given work, even just to index it, can never constitute fair use," Google Chief Executive Eric Schmidt countered critics in an op-ed Tuesday in The Wall Street Journal. "If this were so, you wouldn't be able to record a TV show to watch it later or use a search engine that indexes billions of Web pages."

Displaying snippets of copyrighted work is "like somebody giving you fragments of lyrics of a song," said Jonathan Zittrain, chair in Internet Governance and Regulation at Oxford University. Also, Google's program is providing for the greater good by exposing rarely read books, Zittrain and others argue.

A major criterion for determining whether a particular use of copyrighted material is fair use is how, exactly, it will be used. Though Google won't be making any money off the sale of books and says it has no plans to put ads on the pages with the library book search results, even Drummond concedes the use is commercial.

The Google Print Library Project is similar to the indexing activity of search engines, which so far no one has challenged in U.S. court, copyright lawyer Jonathan Band wrote in an article published in E-Commerce Law & Policy in August.

The court will look at the nature of the work, whether it is more of a
factual or creative use of the copyrighted material, said Oman. It also will likely determine whether Google is offering a substitute to the original copyrighted work or whether it is offering something different enough to be considered "transformative," experts said.

"What we are doing is making a transformation of the copyrighted material, the underlying work," argued Drummond. "We are creating an electronic equivalent of a card catalog that helps you find" the original works.

In addition, the court will consider how much of the copyrighted material is used, and will determine the effect on the market of the purported fair use.

And in this corner...
Publishers, however, could say the program would hurt their ability to make money on their own digital book distribution. In short, they could argue that Google is being a bully.

"Is Google claiming a sort of 'eminent domain' over all published works and if so, who elected it to do so?" Patricia Schroeder, president of the American Association of Publishers and a former Colorado congresswoman, questioned in a letter to the editor in Thursday's Wall Street Journal.

If Google is allowed to go ahead with its plans, more could be at stake, worries John Battelle, author of "The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture."

"Who owns the rights to leverage this new innovation--the public, the publisher or...Google?" he asked in a posting on his blog.

Legal experts say one copyright case that involved fair use could come into play. In Kelly v. Arriba Soft, the 9th Circuit Court ruled that a search engine did not violate copyright by displaying thumbnail images of photos from a photographer's Web site, because the search engine was not profiting from the images and was instead directing more traffic to the original site.

Regardless of how the Google cases go, the battle between copyright owners who want to maintain control over their work in the digital age and technologists who want to use the Internet to make the material more freely available will continue to rage.

"Tension between new technologies and copyright has been with us since the invention of the printing press. Publishers get extremely nervous when there is a digital copy of something floating around in cyberspace forever," said Oman. "One copy out there is enough to destroy the economic value of a work, and the damage that can be done is so much greater."